§ Order for Second Reading read.
§ 8.21 p.m.
§ The Minister of State, Home Office (Mr. Brynmor John)
I beg to move, That the Bill be now read a Second time.
As those who know anything about the law are aware, the Bill deals with a difficult and complex area of the criminal law. It arises from the Criminal Law Revision Committee's Thirteenth Report on Section 16 of the Theft Act 1968. I am sure that the House would wish to join me in paying tribute to Lord Edmund-Davies and his colleagues on the CLRC for carrying out the review of the law.
The story should have served as a warning to the Houses of Parliament about the way in which they amend Bills which have previously had careful consideration. Section 16 of the Theft Act came into being when the House was considering the Theft Bill generally and the original draft clause of the CLRC. In order to clarify the original clause which the House of Lords thought was not sufficiently clear, it introduced Section 16 in the form in which it appears in the law at present. It thought—and there was some evidence for this—that the original draft was too wide in the way that it defined a criminal. Unfortunately, because of difficulties in drafting, the provision did not introduce any certainty into the law and it has been redolent of controversy ever since. It has been not only a source of trouble for the courts but a source of fruitful discussion by academic textbook writers.
Three cases illustrate the difficulties that we have had. In one year there were two cases, that of Turner and that of Ray, which involved the evasion of a debt. In 1976 there was also the case of Charles, which involved the fraudulent use of cheques at a gaming club. These cases were decided with difficulty by the courts. Several Law Lords described in the strongest language the difficulty which the legislature had given to the courts when dealing with this provision.
Consequently, in August 1972, the Home Secretary referred the working of Section 16 to the CLRC. He asked the Committee to consider whether changes were necessary. On consideration of the 128 problem the Committee found that not only did it need to deal with the question of whether that section was aptly framed but whether the right line between criminal behaviour and non-criminal behaviour had been drawn in the original report. The Committee therefore studied the matter anew, issued a working paper and obtained a wide measure of comment on it. It is fair to say that no working paper of the Committee has attracted such wide comment.
The Committee recommended that Section 16(2)(a)—which is the part which has caused all the difficulties in the law—should be replaced by new provisions which broadly cover the same ground as before, but in terms which are more clearly defined.
In one respect the Committee decided that the law should be slightly narrower than at present, and in another respect that it should be slightly wider. The slightly narrower definition involved the stalling debtor and the slightly wider definition involved making off without payment.
The Committee embodied the recommendations in a report which had a draft Bill appended to it. In substantial form that was the Bill which was introduced by the Government in the Lords. The slight changes which were made by the Government had the consent of the Committee and they made more clear what was meant.
Clause 1 of the draft Bill concerned deception as to the prospect of payment and it was intended to cover the more common fraud under Section 16 where there is a deception at the outset of a transaction, and Clause 2 created an offence ofobtaining relief from liability by deception.Those were the original provisions introduced in the Lords. Unfortunately, although Parliament has a comparatively poor record in trying to put right the law on this subject, that did not deter the Lords. It again introduced amendments to Clauses 1 and 2 which, although slightly more successful, are not acceptable to the Government in this form.
Clause 3 of the original Bill involved frauds in such places as restaurants and filling stations. At present there is a considerable loophole in the law. It is a well publicised loophole, which the 129 clause is designed to fill. This clause was not amended during its passage through the Lords and its appears in its original form in the Bill.
In its present amended form Clause 1 creates an offence of obtaining dishonestly by deception services which are provided in return for payment or the promise of payment. In the Bill services are deemed to include the hire of any property.
The point made by the critics of the original CLRC draft was that it was too complex. There is no cheaper way of making a point in Parliament than to say that it is time we returned to simplicity in drafting. People often ask why we cannot draft laws which people can understand at a glance, but in reality the search for simplicity often leads us into greater complexity. That is because complex ideas—and fraud is a complex idea—have to be enshrined in difficult phraseology. That is because the end result is that they are more clear to the courts which have to interpret them than a general phrase which leaves everything for the courts to decide and which spells out nothing for them.
Unfortunately, the end result of the greater clarity that the other place sought in the now amended clause left the term "services" completely undefined. That creates a serious problem, because it leaves gaps in the law. Secondly, the phrasing, although this is by no means so important, would not work as it at present stands.
But on the concept of obtaining services a strong feeling came through from the other place. We asked the Criminal Law Revision Committee to consider the possibility of redrafting Clause 1 in order to make it less ambiguous than the version which their Lordships passed. It kindly agreed to do so at extremely short notice, and it came up with an alternative draft clause for which we owe it a debt of gratitude. The Committee did a great deal of work on this matter, and it is not an easy concept.
I believe it would be convenient to read out the new clause, not because this is the right place to discuss the detail of it but so that hon. Members can see what the CLRC is suggesting. I am bound to indicate on behalf of the Government that we intend to introduce an amendment in Committee to insert this clause in place 130 of the existing clause in the Bill. The clause reads
That is a far clearer draft and one which combines comparative brevity with clarity for the courts.
- "1.—(1) A person who by any deception dishonestly obtains services from another shall be guilty of an offence.
- (2) It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for."
The existing Clause 2 is not satisfactory in the amended version which the other place has introduced. It reproduces almost exactly the wording of Section 16 (2)(a) of the 1968 Act, and since that Act is the subject of heavy criticism, reproduction of the criticised section in the new Bill will cause uncertainty and lead to what Lord Edmund-Davies described as a "judicial nightmare". Since Section 16(2)(a) effectively deals with two clauses of the new Bill, it would make Clause 1 redundant if we retained the wording of the existing Clause 2.
Thirdly, and most seriously, because this is an issue of principle, the Government do not agree with the balance that is struck by their Lordships in the present clause in the case of the stalling debtor. As the clause stands, any person making an untrue representation—for example, the housewife who in the time-honoured tradition falsely tells the rent collector that she cannot pay the rent one week because she has lost her purse, or because her husband is away, and promises to make up the money over the subsequent couple of weeks—would be guilty of a criminal offence even though the intention would be sincerely to make good the payment within the next two or three weeks.
That is a needless intrusion of the criminal law into what is traditionally a matter of civil remedy. For that reason, as well as the other two reasons, we believe that an amendment to restore the original Clause 2 is right. The stalling debtor, who is a person who merely temporarily does not intend to pay but intends to pay before long, thus not intending permanently to avoid payment, should not be the subject of the criminal law.
Clause 3, which deals with the conduct known as bilking, which is not paying for a meal that one obtains, or making 131 off having filled up one's car with petrol without paying, remains as it was in the original draft. It fulfils a great need, in the sense that there is a gap in the present law, in that there may be no offence committed. Hon. Members will remember a case in which it was held by the court that although a person intended to pay when he started to fill up his car with petrol, his intention changed subsequently while putting, say, the additional three gallons in his tank and he was, therefore, not guilty of an offence. That seems to be a great source of difficulty, particularly for ordinary people, in understanding the substance of the law.
I believe that the Bill removes an unsatisfactory state of affairs in another respect. For example, there is the anomaly whereby a person who has had a meal and has formed the intention not t3 pay, and indicates to the waiter that he is going outside to make a telephone call, may be guilty of an offence, whereas in some circumstances a person who merely bolts from the table and runs away may not be guilty of an offence. That great gap in the law is covered by the Bill.
The penalties are set out in Clause 4. It is our general policy, as hon. Members know—they share this intention— to reduce maximum sentences wherever appropriate. In Clauses 1 and 2 we have followed the recommendation of the Criminal Law Revision Committee, but in respect of Clause 3, since that effects a slight widening of criminal responsibilty, we have heeded the comments of, among others, Sir Rupert Cross and Professor Glanville Williams, who are both members of the CLRC, and have reduced the proposed maximum penalty under that clause from three years to two. The fines follow the pattern set by the Criminal Law Act and are, of course, inflation-proofed by virtue of the provisions of that Act.
The three remaining clauses deal with supplementary and formal matters. Clause 5 secures that offences under the Bill are made extradictable—perhaps I anticipate here a Friday debate on extraditable offences in which the hon. Member for Orpington (Mr. Stanbrook) and I are interested—and they are brought within the scope of the Fugitives Offenders Act.
132 Clause 6 allows the changes made in England and Wales by the present Bill to be extended to Northern Ireland, where the relevant law at the moment is identical, by Order in Council subject to negative resolution. Clause 7 is concerned merely with formal matters and commencement.
I have tried in a short time to outline the main provisions of the Bill and to explain how I think it will benefit us. In my view, it can do no good to perpetuate a state of affairs in our criminal law in which the offence of fraud is dealt with in a manner so complex that even the courts have the greatest difficulty in considering it. I believe that, when it becomes law, the Bill will effect a great benefit by clarifying the law and thereby giving certainty in terms of when people are liable and when they are not. For that reason, I commend the Bill to the House. I believe that it will command wide support.
§ 8.38 p.m.
§ Mr. Ian Percival (Southport)
It will be no surprise to the Minister to know that we welcome the Bill and welcome what the Government suggest should be done to it. It is necessary to mention both because we are in an unusual situation here in that, at the same time as moving that the Bill be given a Second Reading, the Minister has informed the House that he proposes drastically to change the first two clauses.
However, it will be no surprise to the Minister that we welcome what he intends to do, because the Home Secretary was courteous enough to inform my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers) when that decision was taken, and my right hon. and learned Friend informed the Home Secretary that we welcomed what was proposed. Indeed, when at one point it looked as though the previous business might collapse and the Minister was not in the Chamber, I had in mind that I myself might move the Second Reading.
The replacement of Section 16(2)(a) of the Theft Act is badly needed. That is a matter of agreement all round. Indeed, the Minister will recall that, when the Criminal Law Bill was in Committee, my right hon. and learned Friend and I and others of our hon. Friends moved as amendments to that Bill the proposals 133 which had been put forward by the Criminal Law Revision Committee, and we withdrew those amendments on the Government's assurance that in the next Session they would themselves introduce legislation. They did so in the other place, and we all thought that things would go through not only smoothly but quickly. Life is full of surprises. I hope in this case that what at one stage looked like a slightly unpleasant surprise may prove to have served a useful purpose.
When those major amendments were made in the other place, it looked as though that might mean that progress that would otherwise be made could not be made. The debate in the other place had shown that there were some difficulties in Clause 1 as originally proposed. It is to the credit of the Criminal Law Revision Committee, although it is what one would expect, that when these matters were drawn to its attention it said that its own first suggestion could be improved. Had it not been improved, we would not have been in this position.
Some difficulties, which none of us had spotted, arising from the original Clause 1 had been drawn to our attention. Because of those difficulties, the clause had been replaced in another place by a new Clause 1. Not everyone was happy with the new clause. Therefore, we might have had the choice of two clauses, neither of which was entirely satisfactory.
That might have produced a position in which it would not have been possible to complete the progress of the Bill because it would not have been possible to reach the large measure of agreement necessary if the Bill is to go through in the time available. At that stage my right hon. and learned Friend and I had discussions with the Minister. My right hon. and learned Friend discussed with him the possibility of asking the Criminal Law Revision Committee to reconsider Clause 1. It gladly did so. The Easter Recess assisted in the matter of time. The Committee was not given very much time to respond to that request, and the time was slightly enlarged because of the Easter Recess. The matter was dealt with speedily and satisfactorily. I think that the House will say, having considered closely what is proposed, that the CLRC acted speedily.
I echo the tribute paid by the Minister to Lord Edmund-Davies, who was the 134 chairman of the Committee when it initiated the report on which we are now basing our actions. I pay tribute also to the present chairman, Sir Frederick Lawton, who has been the chairman all through the period of time during which the matter has been referred back to the Committee. The Committee has speedily and helpfully produced another clause for us. It will prove to have been of great assistance to the House in arriving at a correct conclusion.
It follows from that that we shall support the Government when they move in Committee to remove Clause 1 and substitute the new clause which has been put forward by the CLRC and which the Minister read to the House a moment ago. One of the clearest things about our system is that although we talk about the separation of powers and the complete separation of the legislature from the judiciary, we do not observe it. There are many members of this legislature who sit in a judicial capacity. It is a very good thing. In that capacity we find how silly was some of the legislation that we allowed through in our other capacity.
Many Members in the House who sit as recorders have had to try cases brought under Section 16(2)(a) of the Theft Act 1968. I have presided over cases in which the deception involved was a deception in persuading the victim that he had already been paid. That was not covered by the orginal Section 16(2)(a), by the orginal Clause 1 or by Clause 1 as it stands, but it will be covered by the new Clause 1 to be moved in Committee. It is difficult for hon. Members to express a view on the new clause because no one has seen it. That creates problems, but it is not a matter for criticism. It is inevitable from the way the situation has arisen. That may be why the Minister said more about it than he would otherwise have done, and it is certainly why I am saying more than I would otherwise have done.
I assure my hon. Friends that my right hon. and learned Friend the Member for Wimbledon and I are both satisfied that the proposed new draft meets all the difficulties that have so far emerged in the various debates that have taken place on Clause 1.
Unless something may yet be done about Clause 2, we shall support the Government in Committee in restoring 135 the original Clause 2—broadly for the reasons that the Minister has advanced. I do not want him to think that because I am agreeing with so much I am agreeing with everything. There are a number of Committee points on which there may be differences. There is nothing serious, but I do not want the Minister to think that I am agreeing with everything he says. I am dealing only with the main points and leaving aside the minor Committee points. Equally, I do not want him to think that I have in my pocket a long list of amendments for the Committee stage. I do not think that there will be much serious dispute about any part of the Bill, but there may be discussion on some parts because we all share the wish to get it right this time.
I know that, so far, the time scale has been such that it has not been possible for the Criminal Law Revision Committee to give the same consideration to Clause 2 as it has given to Clause 1. If there had been sufficient time, the Committee would, ideally, have put before us not only a revised and improved version of Clause 1 but an improved version of Clause 2, but it may be that the time scale prevents that from being a possibility. I do not know whether the Minister has asked the Committee whether it could consider that or whether there is any possibility of its suggesting improvements. It is on the cards that its recommendations would be as helpful to us and to the improvement of the law as was its reconsideration of Clause 1.
I hope that the door has not been closed on that possibility, though I accept that time may close that door. Subject to that one hope, we welcome the Bill and what the Government propose to do in Committee on Clauses 1 and 2. I regret, as do the Government, that it has been necessary on Second Reading to say that the Bill will not be the same Bill as that to which the Government are asking the House to give a Second Reading, but I ask my hon. Friends and my hon. and learned Friends to bear with both sides on that. I do not think that it was avoidable. I hope that the fact that that unusual situation has arisen will not prejudice anyone against what is proposed, because I think that what is proposed will result in a very real improvement in the law. Accordingly, I am 136 very happy to support the Second Reading of the Bill.
§ 8.50 p.m.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
This Bill, originally introduced in another place, was based, as the Minister has said, upon the draft Bill which emerged from the deliberations of the Criminal Law Revision Committee, set out in Cmnd. 6733. It was the consideration given by a very powerful Committee to the necessity of dealing with Section 16(2)(a) of the Theft Act 1968, which was described in the case of the Queen v. Royle as a "judicial nightmare". Cases brought under this Act have illustrated that this criticism is well justified.
On Clauses 1 and 2 of the original Bill, the recommendations made by the Committee were, as we have heard, materially altered as a result of Divisions in another place, and we now have the present Clauses 1 and 2, which were substituted. I readily agree that in some respects the original clauses presented some real difficulties. I was troubled, for instance. by the words in Clause 2(1)(b):in order to make permanent default.I have doubts about the way in which these words would be understood and interpreted by a jury.
I am all in favour of simple language being used so that a layman, who is supposed to know the law, will understand the position. But as was said in another place, simplicity can be bought at too great a price, and brevity is not synonymous with clarity.
I have read the arguments used by the mover of the amendments in another place which resulted in the present form of Clauses 1 and 2. I have also read the speech made by Lord Edmund-Davies, the chairman of the Criminal Law Revision Committee. I feel that it is exceedingly important that when the Bill is considered in Committee in this House, careful attention should be given to the arguments on each side.
It seems to me that much more attention should be paid to what I believe are exceedingly persuasive grounds put forward by the chairman of the Committee in calling for the retention of the original draft. After all, it was the product of a specialist Committee of exceptional ability and knowledge. I am very glad, 137 therefore, to hear that the Minister proposes to put forward in Committee a new clause which the Criminal Law Revision Committee has dealt with, and I hope that that will be considered in the light of the criticisms that have been made.
There is, however, one further point that I would raise which calls for consideration. In the case of the Queen v. Rigg, decided in 1892, it was held that an attempt to pick an empty pocket was an offence. That decision was followed for many years. In Haughton v. Smith, in 1973, however, it was held that an attempt to dispose of stolen goods where goods were in the possession of the police was not an offence, and in Partington v. Williams, in 1976, it was held that there was no offence where the defendent looked into a wallet and would have taken the money until he found that the wallet was empty. These cases, among others, have effectively overruled the decision in the Queen v. Rigg.
I understand from many discussions that I have had with magistrates that they often have cases of that nature and that they are constrained to advise defendents in such cases to plead not guilty.
Command 6733 says, on page 9, thatIf a man's intentions are dishonest from the beginning of a transaction and he practises a deception on his victim, the nature of the offence committed depends upon the nature of the benefit which the rogue is seeking to obtain.The would-be thief should not escape punishment because the benefit was not there to be obtained. This is a good opportunity to deal with a point which I understand has troubled many magistrates. I hope that it will receive consideration in Committee.
§ 8.56 p.m.
§ Mr. James Molyneaux (Antrim, South)
I assume that Clause 3 covers that type of offence which is alleged to be shoplifting—alleged by two categories of shopkeeper. The first comprises those shopkeepers who reduce staff until it is almost impossible to find a cash desk in operation and there are long queues at those which are. The second comprises those shopkeepers who deliberately tempt customers to purchase and also accidentally tempt them to steal attractive and expensive goods.
Both types of shopkeeper expose shoppers to two risks—that of yielding to temptation and that of absent-mindedly 138 taking goods without payment. There are many examples in one's mailbag of this type of case. I hope that we shall be told that the Government will at a later stage look into this serious problem and do something to remove a great deal of suffering among innocent people.
Clause 6 extends the provisions of the Bill to Northern Ireland. Once again, we express our satisfaction at the inclusion rather than the exclusion of Northern Ireland. Admittedly, a special type of mechanism is employed, but, as my right hon. Friend the Member for Down, South (Mr. Powell) explained on 23rd May, we are prepared to accept such a device on the basis of the understanding which he then set out and which was accepted by the Minister from the Northern Ireland Office.
We have no criticism of the Bill, although I expect that hon. and learned Members, with the benefit of their detailed legal knowledge, will have points to put forward which have escaped me. Broadly, however, the Theft Act 1968 and its parallel, the Theft Act (Northern Ireland) 1969, contain the same major defect, which the Bill seeks to remedy.
It might be asked why we do not have a simple application clause to extend these provisions to Northern Ireland, but I understand that in that case the text of the change in the law would appear in the United Kingdom statutes instead of in the Northern Ireland statutes, alongside the Northern Ireland Act of 1969. Such a complication would create unnecessary difficulties for law practitioners in Northern Ireland. I have no doubt that they could eventually overcome those difficulties, but perhaps at additional expense to their clients.
Because of the existence of Clause 6, we representatives from Northern Ireland can legitimately debate the Bill and its application to Northern Ireland. However, the House will be relieved to know that political and legal opinion in Northern Ireland welcomes the proposed alterations. I have received no adverse comment, and such views as I have obtained from legal and lay persons have been favourable. I conclude by expressing our support for this legislation.
§ 9.0 p.m.
§ Mr. Robert Adley (Christchurch and Lymington)
I am delighted to have the 139 opportunity to be called to speak in this debate following the remarks of the hon. Member for Antrim, South (Mr. Molyneaux). I am not sure whether he is a qualified lawyer.
§ Mr. Adley
That is good. He was the first non-lawyer to speak in the debate, since the Minister is a qualified solicitor and my hon. and learned Friend the Member for Southport (Mr. Percival) and the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) are eminent Queen's Counsel. It was interesting that the hon. Member for Antrim, South assumed—I think with every justification—that the Bill was intended in some way to deal with or relate to the problems of shoplifting.
§ Mr. Adley
I have been on my feet for only a minute. I was referring to the remarks of the hon. Member for Antrim, South and I was making the point that he felt that something in the Bill was in some way connected with shoplifting. When the hon. Gentleman mentioned that matter, the Minister of State grimaced.
§ Mr. Molyneaux
What does the hon. Gentleman make of the side note "Making off without payment"? Surely that is a vindication of what we are both saying.
§ Mr. Adley
I agree with the hon. Gentleman. We are here tonight discussing a piece of legislation, and the Minister of State used the phrase "a matter of parliamentary intention". It is clear to the two non-lawyers who have taken part in this debate that our reading is different from the view taken by those in the debate who are legally qualified. I am explaining why I am speaking in this debate, and I apologise to my hon. and learned Friend the Member for Southport, who is on the Opposition Front Bench, and to the Minister for objecting to the proposition that the Bill should be taken in a Second Reading Committee upstairs. I believe that the 140 Bill as amended in another place could be construed to be designed to deal with certain aspects of shoplifting.
The Minister has clearly said that he wants to throw out the amendments that were made to the original Bill in another place. I hope that I shall have the agreement of the Chair that I am entitled to make my speech on the Bill as presented to the House in the Vote Office and not in relation to the Bill as it may be amended in Committee upstairs. On that basis, I wish to deal with one or two points in the Bill rather than to discuss matters on which I am not qualified to comment relating to the deliberations of the Criminal Law Revision Committee. Some of us who are non-lawyers can examine pieces of legal legislation, if I may so term them, through different eyes from those used by qualified lawyers.
The changed Bill, in Clause 2(1)(a), uses the expression "dishonestly evades". That begs the question of what is dishonest evasion. In order to find a text for my speech tonight, I went to the Library and turned to the dictionaries and in "Webster's Third New International Dictionary", under the heading "Dishonest", I found a quotation from that well-known American social critic and teacher Mr. Lewis Mumford. He said:While it would be dishonest to gloss over this weakness, one must understand it in terms of the circumstances that conspired to produce it".This is where I relate my remarks to the point made by the hon. Member for Antrim, South. What, indeed, is "conspiring" to produce an increase in theft in general and in shoplifting in particular? We must not just look at the law as it affects these matters but we must look at the activities of those who were referred to by Mr. Mumford as conspiring to produce it.
The advent of self-service stores has been the greatest single factor in causing the increase in shoplifting that this country has ever known. The phrase has been used "the deliberate creation of temptation". I agree with this. Of course, if one sets out deliberately to encourage people to help themselves, one should not be surprised when they do just that. Therefore, what is the role of the owners of these chains of supermarkets in the increase in thefts and shoplifting which has taken place over the past 15 to 20 years?
141 The owners will, of course, deny to their dying breath that their trading methods have anything to do with the increase in theft. In fact, so adamant are they that they have now set up a propaganda organisation—the Association for the Prevention of Thefts in Shops—which is chaired by an eminent Member of another place. This organisation seems to spend a considerable amount of its time scouring through the newspapers dealing with points that I have made about theft and shoplifting and refuting them. But I believe that the Bill as presented to us tonight could be misused, certainly in a way not intended by Parliament.
Clause 3(1) of the Bill relates to what I have been saying. It refers to a person whoknowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected".Many people have been to Marks and Spencer and have scratched their heads trying to find where, how and when they should pay. I am grateful to have the nodded support of the hon. Member for Gloucestershire, West (Mr. Watkinson), who probably will be embarrassed by what I am saying, but any of us who are remotely in touch with our constituents know that a significant number of people get caught and ensnared and find themselves on serious criminal charges of theft or shoplifting directly as a result of the trading methods of self-service stores and modern shopping methods. I ask the Minister to accept the point that it is not the law's fault but is in many cases the store's fault.
Another part of the Bill that is extremely topical is Clause 3(4). In today's newspapers, the Home Secretary is reported as having made a speech to a meeting of the International Professional Security Association. In today's edition of The Guardian, there is the phrasethe infiltration of criminals into private security companies.This must be a cause of alarm, particularly when related to Clause 3(4), which says:Any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, committing or attempting to commit an offence under this section.It is relevant to ask whether the Government believe that that clause in the 142 Bill could not be misused by people acting on behalf of security companies. According to the chairman of the International Profession Security Association, who was reported in The Guardian today, he would welcome a system of registration for personnel and companies to maintain high professional standards. The association's journal, "Security Protection", says:even the best public relations cannot conceal the fact that far too many villains have found their way into the murkier sides of our industry, causing untold mischief.The Home Secretary was right to be worried about the activities of some security companies and about the so-called store detectives who may well find this clause of great benefit to them. What training is required of a store detective as far as the law is concerned? The answer is "None". How can one measure the productivity of a store detective? The answer is self-evident. If the store detective is unscrupulous—particularly one employed by one of the smaller security companies rather than by a large store—I am sure that many people will know perfectly well what I am getting at.
I have no wish to destroy or oppose the principles behind the Bill, but I hope that the Minister of State will not mind if I say that I think we are entitled to probe a little further. If I am fortunate enough to find myself on the Committee, I should like to have the opportunity to suggest one or two admendments to the Bill. They may or may not be selected. We shall have to wait and see.
Is it possible that we should be considering warnings, or fines on the spot? Could these be considered for incorporation in the Bill? I understand that warnings are common in juvenile courts and that thereafter a warning can be entered on a person's record but that this is rarely done in the case of adults. I wonder why it is considered appropriate to enter on the record of a juvenile the fact that he has received a warning for an offence when that is not done in the case of an adult? Perhaps this could be explored.
Fines on the spot may be relevant to supermarkets. There is no need to pretend that there is not a high proportion of rogues operating in supermarkets. Fines on the spot were the subject of discussion recently on the Transport Bill, 143 I understand that the Home Office was alarmed at the proposals which were inserted in Committee and that the Government, having agreed to support the proposals for spot fines, subsequently removed the relevant clause from the Bill.
I remind the Minister that Clause 288(a) of the Customs and Excise Act 1952—with which I am sure he will be immediately familiar—makes provision to allow Customs officers to fine people on the spot. The effect of that legislation is to enable people to pay a fine for not being taken to court. Perhaps this is an idea that we ought to explore further within the ambit of this Bill.
The Minister knows about research being undertaken into shoplifting in my constituency. Indeed, the Home Secretary has been kind and courteous enough to take an interest in it. Together with three magistrates who live and work in or near my constituency, we have set up a study group to look into the question of shoplifting and the methods employed by stores in apprehending people. We have had meetings with lawyers, police, probation officers, security companies, store detectives, security officers and many other people, as well as with many people who have been involved in allegations of shoplifting.
We are extremely perturbed about the trading methods of the stores and about the methods of apprehension used by some of these so-called store detectives. We believe that there is a need for a code of practice in dealing with these matters. I am concerned that some aspects of the Bill could be misused in a way that is not intended.
I have no intention of seeking to oppose the passage of the Bill, but I hope that the Minister will bear with me if in Committee I have the opportunity to raise some of these matters in more detail.
§ 9.13 p.m.
§ Sir Anthony Meyer (Flint, West)
I shall lay rather less stress than my hon. Friend the Member for Christchurch and Lymington (Mr. Adley) did on the possibility of amending the Bill in order to secure the object which both he and I have in mind. I am not sure that what we wish to achieve can be effected by amending the legislation but, with due respect to what the Minister of State said 144 about the relevance to the Bill of what we are saying, I believe that to any layman the Bill, and particularly Clause 3, clearly covers a case of shoplifting.
Our debates here are not just debates between legal experts arguing the niceties of law; they are also debates between laymen who take a less expert view of these matters and in which they seek by their contributions not merely to amend the law but to affect the climate of opinion in which the law operates. It is to that end that I shall be directing my brief remarks rather than to making suggestions about the way in which the law can be amended.
If I am fortunate enough to serve on the Committee, and if it is possible to devise amendments, I shall certainly wish to support them, but my principal object in this brief intervention is to try to have some impact on the state of public opinion on this matter. If we are fortunate enough to extract a constructive and helpful comment from the Front Bench spokesmen, that will have an even larger impact on that section of public opinion which we are seeking to influence.
I shall not go quite so far as my hon. Friend the Member for Christchurch and Lymington in attacking the self-service stores, although often their arrangements are open to severe criticism. I go part of the way with my hon. Friend in his attack on them, but I am more concerned not with those who are led into temptation by the selling methods of retail stores but with those who, entirely inadvertently, expose themselves to charges in cases such as this. For example, there is the mother who goes out shopping with a small child and who slips something into her shopping bag, or the housewife who suddenly remembers when she gets to the meat counter that she has left the gas on and dashes out. There is also the person who, while queueing at the cash desk, suddenly sees a friend, dashes over to have a word, and clean forgets. It is only too easy to commit by inadvertence something which is a relatively trivial offence for which the penalty is not harsh. I am not suggesting for a minute that the penalties are harsh. But the real punishment is the appearance in court.
There are a great many offences which nowadays one can commit by mistake. One can go through a red light, park in the wrong place, or exceed the speed 145 limit. I see my hon. and learned Friend the Member for Southport (Mr. Percival) on the Opposition Front Bench. I am well aware that these are offences which from time to time all of us commit. When one commits this sort of offence one is had up in front of the courts and perhaps fined. Perhaps one even has one's licence endorsed. But it is not a matter of disgrace. One's reputation is not thereby ruined. However, if a vicar doing some shopping for his wife and mentally composing his sermon as he goes around the shelves, leaves the store without having paid for a box of matches, he is liable to read in the local paper the following week "Vicar accused of shoplifting" or "Vicar accused of theft from store".
§ Sir A. Meyer
I am extremely grateful to my hon. Friend. He has led me on to the next stage of my argument, of which I had lost the thread. I am very concerned about the way in which certain stores use a policy of automatic prosecution in order to reinforce their inadequate security methods. One of the things that bothers me most is the conduct of certain stores. If a charge of shoplifting is brought by a store detective, who may be a person with no qualifications, or a person with a criminal record, certain stores automatically bring a prosecution. I have made several speeches and broadcasts about this sort of activity and a number of cases have been brought to my notice.
Easily the most horrifying case was one about which I shall be specific. It concerns a Mrs. Fairbrother, a lady who lives in Aldershot and who went shopping at the Army and Navy stores in that town. At that time it was Messrs. Whites. Mrs. Fairbrother had been a regular customer there for many years. She was a lady in a delicate state of health, subject to some degree of nervous disability. She tried on a costume, liked it, bought it and put it down to her account. It was packed up for her and she left the shop with this costume in a shopping bag. As 146 she reached her car, waiting in the street outside, where her husband was, she was approached by two detectives, who said "We have reason to suppose that you have stolen something from the store." They turned the shopping bag upside down and out fell the lid of a plastic jar. I believe that the jar and the lid together were worth 45p.
Unbelievably, the Army and Navy stores at Aldershot brought a case against this good lady which went to court. She was conditionally discharged. I found the case so incredible that I was not prepared to believe it. I wrote to the manager of the Army and Navy stores at Aldershot saying "I have had this story reported to me and I just do not believe it. If you will assure me that the circumstances are not as told to me, I will drop the matter." I had no answer. I know that the manager received my letter because he wote to Mr. Fairbrother saying that I had been in contact and was seeking to exert pressure on him over the matter.
If these remarks of mine receive any publicity it may provide a further opportunity for the manager of the Army and Navy stores at Aldershot to explain why he decided to authorise so indefensible a prosecution. I do not think that there are many cases like that, although I had a not dissimilar one in my constituency not long ago. Changing the law will not stop such things, but I believe that our debates can do something to prevent such incidents from happening.
There is, as my hon. Friend the Member for Christchurch and Lymington said, a barrage of propaganda emanating from the organisation chaired by Baroness Phillips, the Association for the Prevention of Thefts from Stores. It is doing a job on behalf of its members. It sends out this barrage of propaganda which tends to cause people to believe that shoplifting is so prevalent, so uncheckable, that the courts ought to do everything in their power to stamp it out, even if that involves injustice to the individual.
§ Mr. Deputy Speaker (Sir Myer Galpern)
Order. I have allowed a great deal of latitude to the hon. Member. Most of his remarks would have better formed the subject of an Adjournment debate. I do not think that we can pursue this matter of the trading methods of certain shop owners in great detail.
§ Sir A. Meyer
I do not believe that we would safeguard the public by amending the law. I do believe that we can achieve something by attempting to change the climate of public opinion, by attempting to influence the attitude of the courts, by attempting to influence the attitude of the police in bringing prosecutions and, above all, by putting moral pressure on stores to consider each case and decide whether prosecution is justified instead of resorting to the totally unjustifiable policy of automatic prosecution. It is because Clause 3(1) tends to give some encouragement to the point of view that automatic prosecution is justifiable that my hon. Friend the Member for Christchurch and Lymington and I will seek to examine this provision rather more carefully in Committee.
§ 9.25 p.m.
§ Mr. Ivan Lawrence (Burton)
I am not sure whether the Bill is an optical illusion, but I know that I came prepared to deal with it and that a large part of it has disappeared. I suppose that that is one way of keeping my speech short.
In general terms I welcome any attempt to clarify this area of judicial nightmare. I have had only a glimpse of the clauses and no opportunity to digest them, let alone study them. Therefore, I am not in a position to criticise what they may or may not do. However, I shall make one or two points that I believe are of general application to the debate.
It is a shame that there are not more hon. Members present. It is a pity that the debate will not take longer. It is not my intention to delay the House, but we are dealing with the boundaries of criminality. If we are not careful, the judges will tend to make the law and to say what is criminal and what is not. It is when the boundaries of criminality are to be discussed that the laymen in the House should be in the Chamber taking part in the debate.
The Minister referred to the width of existing legislation, which he suggested might be narrowed by the Bill's provi- 148 sions. He gave the example of the housewife who gives some sort of excuse, which is a deception, to delay the payment of a just debt. The hon. Gentleman thought that that should not be criminal. I beg leave to differ. There might be a fair number of other hon. Members who have a different view, but if we are to make that distinction and to say that someone who does something deliberately dishonest by way of deception should not come within the bounds of the criminal law, we might as well open up many other areas of the criminal law. For example, let us take the case of someone who is guilty of a crime who takes a step towards the doing of that act and changes his mind. Morally, he may be less to blame than the housewife who seeks only to gain a temporary pecuniary advantage or delay.
§ Mr. John
There is a valid argument that may be put in opposition to the hon. Gentleman's point, namely, that the concept of permanent deprivation is already included in the law of larceny. For example, it may be that a person takes property without intending permanently to deprive the owner. Therefore, he is not guilty of an offence under Section 1 of the Theft Act. The distinction is already made. We are not seeking to introduce a new provision.
§ Mr. Lawrence
I am not suggesting that it is new. However, once the intent permanently to deprive is established, the fact that the person's mind is subsequently changed, perhaps even moments afterwards, is not a defence to the criminal offence of dishonesty. I do not seek to delay the House over this rather abstruse point of argument on which I have caught myself. There is the wider and more important point that there comes a stage when we are talking about dishonesty and when ordinary people, not lawyers, should be drawing the line.
For that reason, when the Minister makes a statement as though it is handed down from the High Court Bench, as well it might in some circumstances have been, it is something about which ordinary people, represented by ordinary non-lawyers in the House, might well want to form a view. It is dangerous when debates such as this take place in the House and only lawyers or those concerned—I say this with great respect—with one narrow aspect of the Bill, which 149 may or may not be rightly founded, take an interest and take part. The boundary of criminality is everybody's interest.
The second general point is that the Bill is necessary because of the over-complexity of the law which has been built up not by a patchwork process but because, when the academics, the judges, the Law Commission, the Criminal Law Revision Committee and the lawyers got at it, they still could not get it right in the Theft Act 1968. With all the commentaries that have appeared from learned academics on the working of Section 16(2), it was only in the last few days that the Criminal Law Revision Committee had another look at it because the House of Lords made, as it sometimes does—perhaps deliberately—nonsense of the Bill.
This endless definition and redefinition may have stopped with this clause. I do not know. However, I have never understood why it is so simple in the Theft Act for the ordinary layman, who has to know what the law is, as the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) said, to understand what theft is. He can look at the section which defines it, the sections which follow and explain what is meant when one dishonestly appropriates property belonging to another with the intention permanently to deprive, and see what the punishment is. All is clear and simple. If the ordinary person wants to know what constitutes burglary, aggravated burglary, taking and driving away, blackmail, and so on, and the penalties, they are all perfectly clear in the Theft Act. But in the case of fraud, for some reason it becomes muddled, unclear and intensely untidy.
I have never understood why we could not define our deception offence very broadly by saying that where somebody deliberately—that is, dishonestly, not accidentally—deceives another by what he says or does, as a result of which deception he gains something to which he has no right and the other person loses, that is an offence. It would and could be seen to cover reduction of debts, deferment of debts, services and a whole catalogue of offences.
When all is said and done, those who most frequently have to try the issue in serious cases are juries. Juries cannot be taken to understand what judges cannot 150 understand—the complexities of the law. A juryman asks himself "Is this action dishonest? Has that person dishonestly said something as a result of which somebody has lost and he has gained?" That decides the issue.
It has never suited the conduct of our criminal law for these complexities to proliferate. The end result has been for judges—never mind the juries who acquit on countless occasions whenever there is a Section 16 type of offence because they do not understand what the lawyers are talking about—to say "Here is an offence which clearly has been committed, an offence for which Parliament no doubt intended there to be a criminal sanction but I do not understand it. It is not my job to administer to a jury a law which I do not understand." There have been countless acquittals of the guilty because of the preoccupation with over-definition and the lack of clarity that results.
I shall want to look at the clause with great care to see that it does not proliferate unnecessary complexity and definition to any degree at all. Not only does the law have to be clear to judges and lawyers who advise; it must be clear to ordinary people. They must know what the law is and what they may and may not do. They must know not only so that they can avoid criminal wrongdoing but so that they can have confidence that the law is being correctly administered in their names. The whole sorry history of Section 16(2) shows the dangers of going away from that approach.
What I am about to say follows upon the arguments that I have already made about the need for laymen in Parliament to decide the boundaries of criminality and the need for ordinary people to be able to understand the law thoroughly, but it is a point that has occurred to me only since I heard my hon. Friends raise the matter this evening. It involves shoplifting. The Minister knows that there is no intention to use Section 16(2) in a shoplifting case. I and my hon. Friends now know that there is no intention to use it, but Parliament's intention is not studied by the judges or by those who settle indictments or charges.
It reminds me of the story of the postman who goes to a house and sees a sign on the gate saying "The clog only barks". 151 The postman will not go in. The housekeeper comes out and asks "Have you not seen that notice? Why do you not come in? The dog only barks." The postman replies "I know that, and you know that, but has the dog seen the notice?"
Unless there is some clarification to put the matter beyond doubt so that the layman knows as well as the solicitor who might frame a charge that there is no scope intended by Parliament for the use of that section in any shoplifting case, there will not be the clarity and the simplification of purpose for which the Minister is striving as much as other hon. Members.
I am sorry that we have not had more opportunity to study the new clause. I blame no one. I am surprised that what appears to have been achieved in a few days has not been achieved in years to clarify the section on deception. I shall look at the new provision with care and hope that it approximates to simplicity and clarity and reflects the needs of ordinary people.
§ 9.39 p.m.
§ Mr. John
With the leave of the House, I should like to answer some of the questions which have been asked in the debate. The hon. Member for Burton (Mr. Lawrence) speaks with all the confidence that led Parliament to get it wrong last time. I cannot understand the ease with which he thinks that issues can be resolved in the interval between scrapping one speech and writing another. His attitude is a recipe for error. I ask the hon. Member to reconsider his argument.
When I intervened in the speech of the hon. Member for Christchurch and Lymington (Mr. Adley), I was not questioning his right to make a Second Reading speech. As a mark of my seriousness, I shall deal with the case made by him and by the hon. Member for Flint, West (Sir A. Meyer). I have dealt with this on a number of occasions, and they have taken it up with one of my ministerial colleagues. In answer to the hon. Member for Antrim, South (Mr. Molyneaux), the hon. Member for Christchurch and Lymington said that it was entirely reasonable for it to be thought that Clause 3 dealt with shoplifting, and the hon. Member for Burton seemed to accept that. 152 On reflection, however, I believe that he will revise his view. If he considers Section 16 of the 1968 Act, he will see that we are talking about obtaining pecuniary advantage by deception. In other words, shoplifting is dealt with under Section 1 of the Theft Act.
We are now dealing with the case known as bilking, which, for example, is the consumption of a meal and the evasion of payment for it. Another example which readily springs to mind is where a person fills his tank with petrol and leaves without the attendant being able to stop him in time to exact payment. Shoplifting is a charge under Section 1 of the Act and is dealt with by the need to prove dishonesty in the taking as much as in any other part of the Act.
§ Mr. Adley
The hon. Member for Antrim, South (Mr. Molyneaux) and I have read Clause 3(1) separately and we reached our conclusions without collusion. In view of what the Minister said, will he make it clear beyond peradventure that the Government do not intend that the Bill, which will replace Section 16 of the Theft Act, will in any way be used, or should be used by the courts, to deal with shoplifting cases? Will he give that assurance and bring in an amendment in Committee to this effect?
§ Sir A. Meyer
Will the Minister explain why the subsection contains no reference to Section 16(2) of the Theft Act? There is a reference to it in the Long Title, but there is none in the subsection. Anyone looking at the Bill would think that this was an independent piece of legislation standing on its own feet.
§ Mr. John
The hon. Gentleman is entering the realms of fantasy. One does not amend a Bill by quoting in the new section the section that is being repealed. That is a patent absurdity. We may not all be lawyers, but we are all legislators, and I wish that some hon. Members would understand the process of legislation a bit better than they appear to do at the moment.
The hon. Member for Christchurch and Lymington made an important point. The framing of charges is not a matter for the Government. I shall check this point between now and Committee, but at the moment I have no evidence that the previous section was used in shoplifting cases. 153 I therefore have no doubt that the new provisions will prove no more redolent of such charges.
Both hon. Members made what amounted to a massive indictment of private enterprise in terms which, though I was reluctant to pass up the chance, I could not aspire to. We should not fall into the error of saying that because some people are wrongly charged—I confess that that must be so in some cases, because, of those who are charged with shoplifting and plead not guilty, 48 per cent. are acquitted—we can then proceed from that simple premise to the opposite conclusion of saying that no one is rightly charged. There are massive thefts which are dishonest in intent, and a prosecution policy is therefore necessary where it is proved that there is dishonesty and dishonest intent.
The Home Office research unit is presently engaged in collecting information about the policy of stores towards shoplifting, with the aim, once it has collated the information, of making comparisons and drawing general conclusions from it, in the hope that firms will themselves draw therefrom certain lessons as to their own prosecution policies and will not needlessly invoke the criminal law. As I have said in answer to the hon. Member for Burton, I draw a line between what is a matter of recompense and what is a matter of true criminality.
In addition, as both hon. Gentlemen will know, since they have heard about this many times, the working party on shoplifting which the Home Office set up has made a number of recommendations to the major stores and has taken up with the major stores certain suggestions—for example, the suggestion about having parking areas for bags and so on in order to avoid mistake.
Perhaps it will go some way towards showing hon. Gentlemen that I take their point seriously if I say that I hope that no store or chain of stores will concentrate merely upon the apprehension of shoplifters in isolation from a review of their own trading practices so as to avoid the needless prosecution, the prosecution which occurs by accident. I hope that that assurance will satisfy hon. Gentlemen on that point.
My hon. and learned Friend the Member for Hackney, North and Stoke New- 154 ington (Mr. Weitzman) dealt with the question of the impossible attempt, impossible because the pocket or the wallet is empty. I have to tell him that the Law Commission is at the moment reviewing the law on attempts, and it will form a natural part of that review that the Law Commission should consider the cases of Rigg and Haughton v. Smith. But I shall see that my hon. and learned Friend's words are passed on to the Law Commission so that it pays due attention to them.
The hon. and learned Member for Southport (Mr. Percival) invited me to commit Clause 2 to the scrutiny of the Criminal Law Revision Committee. I have to tell him that I think that, at the stage we have now reached, it is probably too late. The next meeting of the CLRC does not come until 16th June, and, with the complexity of Clause 2, I believe that it would be impossible for the Committee to deal with it in the time available.
However, the Clause 2 which we intend to put back into the Bill is the Clause 2 which was drafted by the CLRC itself, so that it has had not only the advantage of that Committee's initial consideration—I accept that it can have second thoughts, just as anyone else can—but the advantage of having been commented on by all those interested parties who were invited to comment upon the report of the working party. Although complex, the clause is the result of all that consideration.
§ Mr. Lawrence
On the question of timing, will the Minister say something about how the implementation of the Bill will fit in with the work of the Law Commission on cheques and bankers' cards? Clearly the two are related, and some people have thought that there was little point in changing the law on deception until the Law Commission had produced some proposals on cheques and bankers' cards.
§ Mr. John
The hon. Gentleman is referring to the more general study by the Law Commission on conspiracy to cheat and defraud. If there were some people who did not think that there was much point in altering Section 16 in advance of that more general review, they were not members of the Law Commission itself, because the Law Commission said that there was urgent need to modify Section 16(2)(a) in advance of its study, and the Law Commission is quite content with the 155 terms in which it is proposed. I hope that that is of some assurance to the hon. Gentleman. There are some interesting points to be made in Committee.
I come back to the central theme of the Bill. Section 16(2)(a) of the Act combines confusion of the law with confusion of the judiciary. Confusion of the judiciary will lead to confusion of the public because we are in an extremely complex era.
The hon. Member for Burton said that certain crimes are easily encompassed and conceived. However, when one is considering deception one is considering evolution in human behaviour. Frauds become more complex. One has only to read the reports of the trials to see how much more complex commercial life has become and, therefore, how much more complex the frauds upon commercial life have become.
It is not always easy to encapsulate concepts, however easy they are to imagine, in words which will cover every eventuality. I hope that the House wants to cover every major eventuality. We do not want the measure some years later to prove to be so inherently rickety that the House of Commons has to consider it again and amend it. By passing a Bill the terms of which the Government will commend to the Committee, the House will do a great deal to stop up loopholes in the law and to cover the cases which it ought to cover—those of permanent dishonesty.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).